2. The appellant herein challenges Division Bench judgment of the High Court
of Gujarat dismissing his Writ Appeal. The said Writ Appeal was filed against
the orders of the learned Single Judge of that court whereby the Writ Petition
filed by the Respondent-bank was allowed setting aside the order passed by the
Industrial Tribunal. The Industrial Tribunal had answered the Reference in
favour of the appellant and had set aside the punishment of discharge as also
the other punishments and restricted the said punishment to stoppage of one year's
increment.

3. Following facts will highlight the controversy involved.

4. Appellant Mavji C. Lakum had joined the services of the Respondent-bank
as a Peon on 1.9.1951. He was promoted as a Head Peon in the year 1963. While
in service, two charge-sheets came to be served upon the appellant and an
inquiry was held against him and he came to be discharged from the service by
an order dated 22.5.1984. This order was challenged by the appellant by filing
a Regular Suit No.99 of 1984 in the Court of Civil Judge (Junior Division),
Anjar, Kutch-Bhuj. The said suit was dismissed. In the appeal, though the
District Court directed reinstatement but denied the back-wages. The appellate
court also permitted the Respondent-bank to hold fresh enquiry. The appellate judgment
was challenged before the High Court by way of Second Appeal by the appellant
where he was awarded 75% back-wages from the date of filing the suit.

5. As the order of reinstatement became final, the appellant was reinstated.
However, since the permission was granted by the District Court to the
respondent-bank to start inquiry afresh, that inquiry was initiated in
accordance with law and in that inquiry the appellant was found guilty of few
charges whereby he was given the punishment of discharge on two charges. He was
given the punishment of stopping his increments in respect of other charges for
which he was found guilty. A show cause notice dated 7.2.1991 was issued to the
appellant calling upon him to show cause why the punishment of dismissal should
not be imposed upon him.

A reply was submitted by the appellant dated 18.3.1991 wherein he contended
that looking into the nature of the charges, the punishment of dismissal was
very harsh. He also offered explanation regarding the charges and the findings.
However, the Disciplinary Authority, after considering the reply inflicted a
composite punishment of discharge. The appellant thereafter filed a
Departmental Appeal which was dismissed.

He, therefore, raised a dispute with regard to punishment of his discharge
and on that basis a Reference came to be made to Industrial Tribunal (Central),
Rajkot which was registered as ITC No.1 of 1993.

6. The Industrial Tribunal firstly came to the conclusion that the
Departmental Inquiry was just and proper. However, in so far as the merits of
the allegations were concerned, the Tribunal came to the conclusion that there
was no evidence supporting major charges, though there was some misconduct on
the part of the appellant. Again the Tribunal specifically held that the proved
misconduct was not so serious as to invite the extreme punishment of discharge.
Reference was thus partly allowed and the order of discharge was set aside. The
Tribunal imposed the punishment of withholding one increment with future
effect. In the meanwhile the appellant retired from the services of the
respondent with effect from 3rd September, 1994.

7. The respondent challenged the Award passed by the Industrial Tribunal by
way of a Writ Petition which came to be allowed by the learned Single Judge who
concluded his judgment as follows:

"Considering the fact that respondent has been working with the
petitioner bank right from the year 1951 and he had put in 30 years of service
before he was discharged from the service and that now he has retired and
reached at the age of 70 years, it is recommended that the petitioner may
consider his case for payment of back wages for the period in question at the
rate of 50%. This is merely a recommendation and not direction and it is for
the bank to take the decision in this behalf. With this observation, this
petition stands allowed.

Rule made absolute with no order as to costs."

8. The judgment of the learned Single Judge was appealed against by way of a
Writ Appeal and as has been stated earlier, the Writ Appeal was also dismissed,
necessitating the present appeal before us.

9. Learned counsel appearing on behalf of the appellant contended that the
order of learned Single Judge as also the confirming order in the Letters
Patent Appeal by the Division Bench are patently erroneous. As regards the
order of the learned Single Judge, the learned counsel contended that the
learned Judge had totally traveled beyond his jurisdiction and went on to
interfere with the findings of fact on re- appreciation of the evidence which
was not permissible. According to the learned counsel, it was impermissible for
the learned Judge to disturb the findings recorded by Tribunal. According to
the learned counsel the Tribunal had a complete jurisdiction under Section 11-A
of the Industrial Disputes Act,
1947 not only to consider the factor of quantum of punishment but also to
re-appreciate the findings reached during the disciplinary inquiry. Learned
counsel has taken us through the order of the Tribunal and has pointed out that
the Tribunal had very carefully appreciated the evidence and had come to the
conclusion that the misconduct proved against the appellant was insignificant
and not so serious so as to invite the extreme punishment of discharge.
According to the learned counsel, once the Tribunal had exercised its
jurisdiction under Section 11-A of the Industrial
Disputes Act, there was no question of interference much less after
re-appreciating the findings given by the Tribunal.

10. As regards the appellate order, the learned counsel criticized that the
Division Bench did not apply its mind and erroneously dismissed the appeal
treating it to be not maintainable.

11. As against this, however, the learned counsel appearing on behalf of the
Respondent-bank supported the order of the learned Single Judge and contended
that since that order was passed under Article 227 of the Constitution of
India, the appeal itself was not maintainable. Learned counsel also urged that
on merits also the order of the learned Single Judge was absolutely correct.

12. At the outset we shall consider the contention as to whether the Letters
Patent Appeal was maintainable against the order of the learned Single Judge.
It was contended by the counsel for the respondent-bank that the appeal was not
maintainable since the learned Single Judge had exercised his jurisdiction
under Article 227 of the Constitution of India and, therefore, there was no
question of Letters Patent Appeal being maintainable against the same. We,
therefore, went through the Special Civil Application, a copy of which is the
part of the paperbook. The said writ petition clearly mentions on the very
first page that the writ petition was being filed under Article 226 of the
Constitution of India. Again para 10 of the writ petition mentions as under:

"Being aggrieved by the order passed by the Industrial Tribunal, the
petitioner begs to approach this Hon'ble court under Article 226 of the
Constitution of India challenging the award on the following amongst other
grounds."

Ground (iv) on the same page says:

"That the order passed by the Tribunal is arbitrary, unreasonable,
unjust and perverse."

Even prayer clause in para 15 is as under:

"That by appropriate writ, direction and order, the impugned order of
Industrial Tribunal (Central) Rajkot at Annexure B be quashed and/or set
aside."

All this suggests that the writ petition was not only under Article 227 of
the Constitution of India but there is a specific mention of Article 226. In a
reported decision of this Court in Sushilabai Laxminarayan Mudliyar &

Ors. V. Nihalchand Waghajibhai Shaha and others [(1993) Supp. 1 SCC 11] a
similar question fell for consideration. In para 4 of the said judgment this
Court observed:

"The Full Bench of the Bombay High Court wrongly understood the above
Umaji Kesho Meshram case. In Umaji case it was clearly held that where the
facts justify a party in filing an application either under Article 226 or 227
of the Constitution of India and the party chooses to file his application
under both these articles in fairness of justice to party and in order not to
deprive him of valuable right of appeal the court ought to treat the
application as being made under Article 226, and if in deciding the matter, in
the final order the court gives ancillary directions which may pertain to
Article 227, this ought not to be held to deprive a party of the right of
appeal under Clause 15 of the Letters Patent where the substantial part of the
order sought to be appealed against is under Article 226. Rule 18 of the Bombay
High Court Appellate Side Rules read with clause 15 of the Letters Patent
provides for appeal to the Division Bench of the High Court from a judgment of
the learned Single Judge passed on a writ petition under Article 226 of the
Constitution. In the present case the Division Bench was clearly wrong in
holding that the appeal was not maintainable against the order of the learned
Single Judge. In these circumstances we set aside the impugned order of the
Division Bench and direct that the Letters Patent Appeal filed against the
judgment of the learned Single Judge would not be heard and decided on merits."

These observations were made by this Court after taking into consideration
the observations made in Umaji Keshao Meshram & Ors. V. Radhikabai, Widow
of Anandrao Banapurkar & Anr. [1986 (Supp) SCC 401]. In the present matter
apart from the fact that the petition is labeled under Article 226 of the
Constitution of India, it is clear that the grounds raised in the petition
suggest that the petition is not only under Article 227 but also under Article
226 of the Constitution. It is to be seen that in the grounds raised against
the order of the Tribunal, it is specifically suggested that the order passed
by the Tribunal was arbitrary, unreasonable, unjust and perverse. The further
complaint made against the Tribunal's order pertain to failure on the part of
the Tribunal to appreciate certain facts and eventualities thereby complaining
non application of mind on the part of the Tribunal. Complaint has also been
made against the approach of the Tribunal and it is suggested that the said
approach was perverse. After reading the writ petition we are convinced that
the contentions raised and the facts stated in the petition justify the
respondent herein to file an application both under Articles 226 and 227 of the
Constitution of India.

13. Learned counsel, however, pointed out that the learned Judge at the end
of his judgment had given certain directions which were in the nature of the
directions given under Article 227 of the Constitution of India. We do not
agree with this contention. In the first place the learned Judge himself has
clearly stated that his suggestion to the bank to award 50% of the back-wages,
in view of the long service of the appellant, was merely a recommendation and
not a direction and that it was for the bank to take the decision in this
behalf. Therefore, this is not a case where any direction as such is issued
under Article 227 of the Constitution. The recommendation made by the learned
Judge, as has been stated in the judgment itself, cannot amount to a direction
made under Article 227 of the Constitution of India. It is to be remembered
that such directions are not made to the parties, the directions contemplated
under Article 227 are to the concerned authorities against whose order the writ
petition is filed. In this behalf we must further point out that in Lokmat
Newspapers Pvt. Ltd.

V. Shankar Prasad [(1999) 6 SCC 275] this Court explained the situation as
to whether the writ petition should be treated to be under Article 226 or under
Article 227 of the Constitution of India. That was the case where the Labour
Court passed an order in Revision under the provisions of Section 28 of the
Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour
Practices) Act, 1971. This order was confirmed by the Industrial Tribunal under
Section 44 of the said Act where both the courts held that the retrenchment of
the workman did not amount to any unfair labour practice on the part of the
appellant. These orders were challenged by the workman by filing the writ petition
under Article 226 and 227 of the Constitution before the High Court. The
learned Single Judge dismissed the said writ petition but the order of the
learned Single Judges itself showed that he was considering the writ petition
of the workman which was moved before him invoking the High Court's
jurisdiction under Articles 226 and 227 of the Constitution of India. In that
writ petition the workman had requested the High Court to call for the records
and proceedings of the Revision Petition and after perusal thereof to be
further pleased to quash and set aside the said order of the Labour Court. It
was averred in the writ petition that the authorities below, while interpreting
various provisions of the Maharashtra Act as also the Industrial
Disputes Act and the rules framed thereunder had totally lost sight of the
object and purpose of these provisions and had put an interpretation alien to
the industrial jurisprudence and has thus committed serious error of law
apparent on the face of the record which resulted in a serious miscarriage of
justice and also in failure to exercise the jurisdiction vested in the courts
below under the provisions of the Maharashtra Act. It was further averred that
the orders of the courts below had resulted in infraction of the fundamental
rights of the workman.

14. When we see the present petition, the situation is no different. What
was averred by the respondent in its writ petition was in the same tone and it
was clearly averred that the Tribunal had ignored the principles of industrial
jurisprudence and that had resulted in miscarriage of justice. In para 16 of
the reported judgment, the court observed:

"It is, therefore, obvious that the writ petition invoking jurisdiction
of the High Court both under Articles 226 and 227 of the Constitution had tried
to make out a case for the High Court's interference seeking issuance of an
appropriate writ of certiorari under Article 226 of the Constitution of India. Basic
averments for invoking such a jurisdiction were already pleaded in the writ
petition for the High Court's consideration.

It is true, as submitted by learned counsel for the appellant, that the
order of the learned Single Judge nowhere stated that the Court was considering
the writ petition under Article 226 of the Constitution of India. It is equally
true that the learned Single Judge dismissed the writ petition by observing
that the courts below had appreciated the contentions and rejected the complaint.
But the said observation of the learned Single Judge did not necessarily mean
that the learned Judge was not inclined to interfere under Article 227 of the
Constitution of India only. The said observation equally supports the
conclusion that the learned Judge as not inclined to interfere under Articles
226 and 227. As seen earlier, he was considering the aforesaid writ petition
moved under Article 226, as well as Article 227 of the Constitution of India.
Under these circumstances, it is not possible to agree with the contention of
learned counsel for the appellant that the learned Single Judge had refused to
interfere only under Article 227 of the Constitution of India when he dismissed
the writ petition of the respondent.."

This Court has further relied upon the decision in the case of Umaji Keshao
Meshram's case (supra). The situation is no different in the present case. The
respondent had raised the contentions regarding the order of the Tribunal in
the very same manner. Though the learned Judge observed that he was acting only
under Article 227 of the Constitution of India, it cannot be said that the writ
petition was disposed of only under Article 227 of the Constitution. The writ
petition was such as would fall also under Article 226 of the Constitution
which label was already attached to the writ petition. Similar relief was also
sought for by praying for an appropriate writ, order or direction for quashing
the Industrial Tribunal's order. We are, therefore, convinced that the law laid
down in Lokmat's case applies on all fours. In the same para 16 this Court
proceeds to observe:

"It was open to the respondent to invoke the jurisdiction of the High
Court both under Articles 226 and 227 of the Constitution of India. Once such a
jurisdiction was invoked and when his writ petition was dismissed on merits, it
cannot be said that the learned Single Judge had exercised his jurisdiction
only under Article 227 of the Constitution of India. This conclusion directly
flows from the relevant averments made in the writ petition and the nature of
jurisdiction invoked by the respondent as noted by the learned Single Judge in
his judgment, as seen earlier. Consequently, it could not be said that clause
15 of the Letters Patent was not attracted for preferring appeal against the
judgment of the learned Single Judge."

Similar observations regarding Articles 226 and 227 of the Constitution are
to be found in the subsequent decision in Surya Dev Rai v. Ram Chander Rai
& Ors. [(2003) 6 SCC 675] where the court has followed the law laid down in
Umaji Keshao Meshram's case (supra) as also in Lokmat's case (supra).

15. We are, therefore, convinced that the Division Bench erred in treating
the matter falling only under Article 227 of the Constitution of India.

16. We would have ordinarily remanded the matter to the Division Bench for
consideration on merits. However, we would desist from doing that in view of
the fact that this whole controversy has started right from 1984 and 24 years
have so far been lost. The appellant, in this case, was discharged in the year
1984 and since then he is fighting for his rights.

True it is that he has been paid his back-wages in part, however, we are
convinced that the Tribunal's order setting aside his order of punishment of
discharge was a correct order and the learned Single Judge erred in setting
aside that order.

17. When we see the Tribunal's Award, it is clear that firstly the Tribunal
came to the conclusion that the inquiry was fair and proper. Thereafter in para
7, the Tribunal has considered the arguments on behalf of the bank to the
effect that once the inquiry has been held to be legal and proper, no
interference can be made as regards the punishment. It is to be noted that the
first charge against the appellant was rough and rude behaviour with client
Gulabchand and company's partner Harenderbhai Shah, while the second charge was
also regarding the rude behaviour with the higher officers of the bank and
disobedience with the work entrusted; the third charge was that he was
instructed to remain present on the bank's account closing day, he had gone
away; the fourth charge was regarding the breach of bank's rules pertaining to
leave; the fifth charge was with regard to frequently leaving the place during
office hours without permission while the sixth charge was regarding the
illegally making trunk calls on the bank's phone without permission and the
seventh charge was incurring excessive debts from outside. It is already seen
that charges 4 and 6 were held not to be proved. It was pointed out before the
Tribunal on behalf of the appellant that for Charge Nos.1 and 3, the punishment
was for stopping the increments while it was for Charge No. 2 and 5 that the
punishment of discharge was awarded. For other charges minor punishments of
censure, etc., and stopping of two increments were imposed. Thus it was only
for the two charges, namely, Charge Nos.2 and 5 that the punishment of
discharge was given to him. In respect of rest of the charges it was merely a
punishment of stopping of increments. It was pointed out by the workman and
rightly accepted by the Tribunal that for long 40 years of his service there
was not a single allegation against the appellant. It was also considered by
the Tribunal that he had not only properly worked for 30-31 years but has also
got promotion of Head Peon during this period.

18. The Tribunal then took stock of the evidence of Harendra Shah with whom
the appellant allegedly misbehaved. The Tribunal ultimately chose to record
that the appellant could not have been found guilty of misbehaviour. The
Tribunal also took stock of the evidence of one Shri Desai and came to the
conclusion that he did not even know the duties of the appellant as a Head Peon
and that there was no record available and further according to this witness
there was no record available of the outgoing trunk calls. The Tribunal also
noted the fact that there was no past record of habitual misconduct on the part
of the appellant and, therefore, the Tribunal came to the conclusion that there
was no sufficient evidence regarding habitual misuse of the telephones. The
Tribunal also noted the evidence of Peon H.K. Pandya who had said that the
delinquent conduct was good with him and he was properly discharging his
duties.

The Tribunal has also referred to the fact that Shri H.K. Pandya has given
his signature on the complaint against the appellant not even knowing about the
document on which he was putting his signature and that he given the signature
just because it was asked from him. The Tribunal also noted the evidence of
H.N. Shethia, Clerk and recorded a finding that his evidence was not
believable. The Tribunal has further noted that Shri Sethia used to visit Shri
Jadeja with whom the appellant had strained relations. The Tribunal further
took stock of evidence of one K.B. Mehta who was unable to tell as to whether
any action was taken against the appellant from 1962 to 1980 and that the
conduct of delinquent was good in the bank premises. The evidence of other
witnesses, namely, Shri Vadhera and Shri J.A. Shah was considered by the
Tribunal and the Tribunal ultimately recorded that there was no record
available with the bank regarding the past history of the delinquent or about
his misbehaviour or any complaint made by any of the staff members. The Tribunal
then records:

"On overall examination of the examination-in-chief and the
cross-examination made during the whole departmental inquiry, it appears that
the bank's staff did not like the delinquent's conduct, whereas the delinquent
was under an impression that he is discharging his main duties and he has not
to do any other work. This is during the period from 1982 only."

".it appears that there is no sufficient record or evidence against the
delinquent so as to impose punishment of discharge on the workman. Therefore,
the punishment of discharge is liable to be set aside. Now, on overall
appreciation, it appears that due to some sort of bitterness between the
workman and the staff members, the workman has committed some misconduct. In my
opinion it would be just, proper and in the interest of justice of punishment
of withholding the increment with future effect is imposed upon the delinquent
and I, therefore, pass the following order."

All this suggests that the Tribunal had considered everything in great
details.

19. In our opinion under Section 11-A of the Industrial
Disputes Act the Tribunal was quite justified in using its discretion. The
scope of Section 11-A has been explained by this Court from time to time in
Life Insurance Corporation of India v. R. Dhandapani [(2006) 13 SCC 613;
Mahindra Ltd. V. N.B. Narawade [(2005) 3 SCC 331] and M.P. Electricity Board v.

Jagdish Chandra Sharma [(2005) 3 SCC 401]. Lastly, this Court has held that
in L and T Komatsu Ltd. V. N. Uadayakumar [(2008) 1 SCC 224] that assaulting or
giving abuses to the superior would justify the dismissal.

We have carefully examined the facts in all the above cases and find that
the appellant's case nowhere comes near the one described in all the above four
cases. After all the Tribunal has to judge on the basis of the proved
misbehaviour. In this case we have already recorded that the Tribunal was
firstly correct in holding that the misbehaviour was not wholly proved and
whatever misconduct was proved, did not deserve the extreme punishment of
discharge.

20. on this backdrop when we see unusually long judgment of the learned
Single Judge, it comes out that the learned Single Judge held firstly that the
Tribunal had exceeded its powers vested in it under the provisions of Section
11-A of the Industrial
Disputes Act. The learned Judge, as regards, Section 11-A, after quoting
the same, observed:

"Though the Tribunal was equipped with the power to come to its own
conclusion whether in a given case the imposition of punishment of discharge or
dismissal from the service is justified. It is for that purpose that the
Tribunal is authorized to go into the evidence that has been adduced before the
Inquiry Officer in details and find out whether the punishment of discharge or
dismissal is commensurate with the nature of charges proved against the
delinquent."

So far the finding of the learned Single Judge appears to be correct.

However, the whole thrust of the judgment has changed merely because the
Industrial Tribunal had found the inquiry to be fair and proper. The learned
Judge seems to be of the opinion that if the inquiry is held to be fair and
proper, then the Industrial Tribunal cannot go into the question of evidence or
the quantum of punishment. We are afraid that is not the correct law. Even if
the inquiry is found to be fair, that would be only a finding certifying that
all possible opportunities were given to the delinquent and the principles of
natural justice and fair play were observed. That does not mean that the
findings arrived at were essentially the correct findings. If the Industrial
Tribunal comes to the conclusion that the findings could not be supported on
the basis of the evidence given or further comes to the conclusion that the
punishment given is shockingly disproportionate, the Industrial Tribunal would
still be justified in re-appreciating the evidence and/or interfering with the
quantum of punishment. There can be no dispute that power under Section 11-A
has to be exercised judiciously and the interference is possible only when the
Tribunal is not satisfied with the findings and further concludes that
punishment imposed by the Management is highly disproportionate to the degree
of guilt of the workman concerned. Besides, the Tribunal has to give reasons as
to why it is not satisfied either with the findings or with the quantum of
punishment and that such reason should not be fanciful or whimsical but there
should be good reasons. In our opinion the reasons given by the Tribunal were
correct and the treatment given by the Tribunal to the evidence was perfectly
justified. The Tribunal committed no error in observing that for good long 30 years
there was no complaint against the work of the appellant and that such a
complaint suddenly surfaced only in the year 1982. The Tribunal was justified
in appreciating the fact that the charges were not only trivial and were not so
serious as to entail the extreme punishment of discharge. Here was the typical
example where the evidence was of a most general nature and the charges were
also not such as would have invited the extreme punishment. It was not as if
the appellant had abused or had done any physical altercation with his
superiors or colleagues. What was complained was of his absence on some days
and his argumentative nature. Though the learned Judge had discussed all the
principles regarding the exercise of powers under Section 11-A of the Industrial
Disputes Act as also the doctrine of proportionality and the Wednesbury's
principles, we are afraid the learned Judge has not applied all these
principles properly to the present case. The learned Judge has quoted
extensively from the celebrated decision of M/s.Firestone Tyre & Rubber Co.
of India P. Ltd. V. The Management [AIR 1973 SC 1227], however, the learned
Judges seems to have ignored the observations made in para 32 of that decision
where it is observed that:

"The words "in the course of adjudication proceeds, the Tribunal
is satisfied that the order of discharge or dismissal was not justified"
clearly indicate that the Tribunal is now clothed with the power of re-appraise
the evidence in the domestic enquiry and satisfy itself whether the said
evidence relied on by an employer establishes the misconduct alleged against a
workman. What was originally a plausible conclusion that could be drawn by an
employer from the evidence, has now given place to a satisfaction being arrived
at by the Tribunal that the finding of misconduct is correct..

The Tribunal is at liberty to consider not only whether the finding of
misconduct recorded by an employer is correct but also to differ from the said
finding if a proper case is made out"

We are surprised at the following observations of the learned Judge in para
7.1:

"Nowhere during the course of the judgment the Tribunal appears to have
followed the aforesaid guidelines or the Wednesbury test. When it was
re-appreciating evidence and on the strength of it, was reaching to different
conclusions and ultimately it has substituted the punishment, it was incumbent
upon it to follow aforesaid guidelines. It was only upon finding that the
decision of the authority was illegal or that it was based on material not
relevant or relevant material was not taken into consideration or that it was
so unreasonable, that no prudent man could have reached to such decision or
that it was disproportionate to the nature of the guilt held established so as
to shock the judicial conscience, the Tribunal could have substituted the
penalty. The entire text of award of the Tribunal does not indicate this." We are unable to agree with these observations.

21. On the other hand the Tribunal, in our opinion has correctly appreciated
the evidence and has also correctly substituted the punishment. In whole of the
judgment, the learned Single Judge has not referred to any of the factual
findings recorded by the Tribunal. In our opinion the judgment of the learned
Single Judge was wholly incorrect in so far as it dubbed the Tribunal's
judgment as wrong. We approve of the judgment of the Tribunal and set aside the
judgment of the learned Single Judge.

22. For the above reasons we are of the opinion that the Writ Petition filed
by the respondent and ultimately confirmed by the appellate judgment was
incorrectly allowed. We dismiss the writ petition and restore the Award of the
Tribunal.

23. In view of the above the appeal is allowed. Under the circumstances we
deem it fit to inflict the cost of Rs.30,000/- against the Respondent- bank.